Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
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THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES
To the Members of the Santa Monica City Council: PLEASE CONTINUE THIS HEARING TO A LATER DATE. THE APPLICANT MADE SUBSTANTIAL AND
MATERIAL CHANGES TO ITS PLANS WHICH I RECEIVED LESS THAN ONE
WEEK PRIOR TO MY DEADLINE TO SUBMIT THIS DOCUMENT AND LESS THAN TWO WEEKS PRIOR TO THIS HEARING. I THUS DID NOT HAVE
SUFFICIENT TIME TO PREPARE THIS DOCUMENT OR TO PREPARE FOR THE HEARING OR TO CONSULT WITH EXPERTS. HOLDING THE HEARING ON 5/10/2022 WOULD FURTHER DENY ME A FAIR PROCESS. THE CITY
UNFAIRLY COORDINATED WITH THE APPLICANT IN NUMEROUS OTHER
WAYS, TO GAME THE PROCESS TO MY DISADVANTAGE AND TO DENY ME OF MY DUE PROCESS RIGHTS.
(This document is incomplete and not adequately edited and trimmed down because the City refused to allow me to have a reasonable amount of time to review the materially modified Plans, twice in one month, and sandbagged me on the scheduling.) If any of the Applicant’s Employees Make Public Comments at the Hearing, That Time Should be Taken Away From the Applicant’s 10 Minutes of Presentation Time During the Hearing, Otherwise the Hearing Process Will Not Be Fair The Format of This Hearing is Denying Many of my Neighbors, Who Support My Appeal, From Attending and Providing Oral Comment
Many of my neighbors and allies who ardently oppose the Applicant’s Project and who support my appeal have told me that they will not attend because of COVID fears. Many of them are mature and/or have other COVID related vulnerabilities. They are all longterm residents with deep roots in the neighborhood and in Santa Monica and they are all voters and many of them are very active politically. Please postpone this hearing and make arrangements so that they can participate in the hearing remotely.
The City of Santa Monica Has Denied Me a Fair Process and Has Denied Me My Due Process Rights
The City of Santa Monica (the “City”) has not conducted the appeal process in a fair manner. The City and its employees (“Staff”) have misled me and acted with bias. The City has unfairly favored the Carlthorp School (the “Applicant”) against my (and my neighbors’) interests as the Appellant.
Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
(1) For the second time in one month the City allowed the Applicant to substantially and materially alter its plans very shortly before the hearing date scheduled for 5/10/2022, causing me to be unprepared to adequately analyze and address all of the changes in the updated plans and also have time to sufficiently prepare and provide my Supplemental Appeal Statement and adequately prepare for the 5/10/2022 hearing, despite my numerous requests to postpone the hearing or to hold the Applicant to its original plans. Staff is and has been clearly unfairly biased in favor of the Applicant and against me (and my neighbors). (2) The City allowed the Applicant to substantially alter its plans very shortly before the hearing date scheduled for 4/12/2022, causing me to be unprepared to adequately analyze and address all of the changes in the updated plans and also have time to sufficiently prepare and provide my Supplemental Appeal Statement and adequately prepare for the 4/12/2022 hearing, despite my numerous requests to postpone the hearing or to hold the Applicant to its original plans. Staff is and has been clearly unfairly biased in favor of the Applicant and against me (and my neighbors).
(3) The City did not notify me until weeks after setting the 2/22/2022 hearing date and weeks after notifying the Applicant that that date had been set and more than 10 days after I first began making inquiries to David Martin and Jing Yeo that that date had been set based on rumors I had heard.
(4) The City committed to me before and after I filed the appeal to allow me to provide a Supplemental Appeal Statement that would be included in the record and which would be fully considered by Staff in their Staff Report and that Staff would provide me with a deadline for submitting my Supplemental Appeal Statement. Staff developed its Staff Report before giving me any such deadline to submit my Supplemental Appeal Statement prior to the 2/22/2022 hearing date.
Staff told me that it had refused to update its Staff Report. Nonetheless, I submitted my second Appellant statement, Statement of Steven Salsberg, Appellant, February 22, 2022, along with other supporting documents. But the only documents that were posted as coming from me as the Appellant that were placed on the City Council’s Agenda webpage were some photos and everything else was treated as mere public comment. The photos that I submitted had no context. Thus, I was denied the opportunity to provide a Supplemental Statement that would be treated as having come from the Appellant and that would be reviewed in the Staff Report.
(5) After the 2/22/2022 hearing was continued, David Martin agreed on 3/9/2022 to update the Staff Report relating to my Supplemental Appeal Statement but then later reneged and the City had continued to refuse to update its Staff Report despite my numerous pleas for such update of the Staff Report based on my Supplemental Appeal Statement. David Martin and other Staff unequivocally told me that the Staff Report would not be updated. Only after the Applicant substantially altered its plans at the last minute on 4/1/2022 and again on 4/26/2022 did Staff decide to update its Staff Report, but only based on the new plans that the Applicant generated. However, the City still continued to tell me that it would not update the Staff Report based on my Supplemental Statement, Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
for which I have been diligently conducting substantial research and analysis for more than a year. However, the City Council Report that was posted to the Agenda on or about 5/5/2022, does update issues relating to my original Appellant Statement, dated 11/18/2020, by claiming that I never submitted any additional statement or facts as I had referred to in my 11/18/2020 Appellant Statement, despite the fact that I submitted such documents on 2/22/2022 and related facts and arguments in numerous emails to Staff. The City Council Report didn’t just fail to address such items and issues, the City Council Report actually claimed that no such follow up documentation or statements were made. For example, regarding the privacy concerns that I raised in my original Appeal Statement (11/18/2020), the City Council Report says that “[a]s of the writing of this staff report, no additional information has been received.” (See The City Council Report, at 16 – 17.) That is simply a bald-faced falsehood. This subject was addressed in my second Appellate Statement on 2/22/2022 and in a series of emails that I sent to the Planning Department. And, because David Martin and other Staff insisted that Staff would not update the Staff Report and because Jing Yeo had extended my time to submit additional materials, I had not yet submitted this statement and other supporting materials, despite the fact that that issue and most everything else had already been drafted.
(6) For a year, there has been an outrageous pattern of the Planning Department refusing to cooperate and answer my questions and then suddenly springing a high-pressure deadline upon me and/or holding a sword of Damocles over my head by multiple times attempting to cram down an appeal date while refusing to answer my questions about the Zoning Code.
For these reasons, additional reasons specified herein and expressed through emails and phone calls with the City, reasons expressed in my initial appeal statement, various actions and inactions taken by the City, and for reasons that might be buried in documents withheld by the City and yet undiscovered documents and events, I have been denied a fair process and my due process rights. And, I have not been treated fairly by the City, as compared to the Applicant in this matter.
I made clear to the City on several occasions since before I filed this appeal that I intended to submit a supplement to my appeal statement (my “Supplemental Statement”) and that I needed to be informed as to what would be the deadline for my submitting my Supplemental Statement. And, the City gave me every indication several times over many months that it would inform me as to what would be the deadline for my submitting my Supplemental Statement. However, the City failed to provide me with any such deadline before the 2/22/2022 hearing date. The City improperly, therefore, published its Staff Report without my having submitted my Supplemental Statement. The process has not been fair.
The City stonewalled and sandbagged me throughout the process, usually refusing to even respond to my numerous phone messages and emails, all the while attempting to cram down a hearing date upon me without answering my questions regarding Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
fundamental zoning code questions that I have a right to have answered. David Martin told me last year that I had a right to have my Zoning Code questions answered and assured me that I would, indeed, have my questions answered. However, even my attempts to reach out to the Planning Director, David Martin, did not elicit responses from Jing Yeo, the Zoning Administrator, or from David Martin. The only way I was able to obtain responses from Jing since May 2021 (and later from David Martin) was for me to contact the City Manager, which I found necessary to do several times beginning in July 2021. Then when Jing did respond, she would not answer some of my most crucial questions and requests for clarifications and confirmation of things she had told me during our telephone conversations on 4/27/2021 and 10/19/2021. She did answer some of my questions but she refused to answer, clarify, and confirm the most important of my questions and issues that I addressed to her in my emails. Her “answers” were generally vague and opaque and also absolutely not on point. (See email strings on the City Council’s Agenda web page.) And, I told her that she was refusing to answer my questions. Jing then insisted that she was not refusing to answer my questions. I responded that she absolutely was refusing to answer my questions. After more than eight months of “pulling teeth,” on 2/1/2022, I even simplified two or three crucial questions into yes or no questions with requests for explanations. Her response after nine months of repeatedly asking her these questions on 2/8/2022 was that my questions were not relevant and therefore she would not answer them – obviously admitting finally that she was and had been indeed refusing to answer my questions all along. However, such questions were relevant, which is proven by how she answered similar questions on the phone in April and October of 2021 and then later on 3/22/2022. (See below.) As I responded to her in my 2/1/2022 email, she did “not [answer my] questions and I [found] it to be outrageously disturbing that [she had] chosen to characterize [her] “answers” as having “thoroughly answered” my questions. Her statement was clearly disingenuous, as is the Staff Report’s Staff Response 8B, to “Questions not answered” (see Third Appeal Statement of Steven Salsberg, Appellant – Substantive Issues).
I told the City (Jing, Regina Szilak (“Gina”), David Martin, David White, and others) several times each in multiple emails over several months and on the phone that:
I still am waiting for answers and clarifications to crucial questions that are prerequisites to additional questions that build on such issues. It is completely unrealistic and certainly unreasonable to hold the hearing or even set a date until:
First I need answers and clarifications to my 7/26/2021 and 5/12/2021 emails; Second, I need to then formulate and ask the follow up questions that are now and have been pending; then Third, I’ll need Jing, the Zoning Administrator, to answer those additional follow up questions; then Fourth (assuming there would be no additional iterative rounds of questions), I would need time to prepare my supplement to my appeal; and then Fifth, Staff would need time to consider my supplement and then after that prepare the Staff Report, sufficiently in advance of the hearing.
Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
I made it clear to Jing and Gina, prior to my even filing the appeal and dozens of times since, that I needed my Supplemental Statement to be incorporated into the Staff Report and that I need to know what the deadline would be for submitting my Supplemental Statement. Such deadline, of course, could not be determined until a hearing date would be set.
Eventually, after more than seven months of being stonewalled and sandbagged regarding getting my very relevant and crucial questions answered and having a hearing date crammed down without allowing me to get my questions answered – questions that I had been assured by David Martin that I have a right to have answered – I then emailed and left a voicemail for David White again on 2/2/2022. David White up until then had given me the clear impression that he would make sure that I would get my questions answered sufficiently in time for me to prepare my Supplemental Statement. (Every time after I emailed or spoke with David White, Jing would shortly thereafter email me regarding my questions, although much of it was vague, opaque, and off point.) Included in my 2/2/2022 email to David White, I said:
“Please intervene and require that the hearing date be postponed and please require that (1) the Zoning Administrator properly answer, confirm, and clarify my questions and requests for confirmations and clarifications regarding the Zoning Code and the Applicant’s proposed project; and (2) require that the Planning Division not contemplate a hearing date until I have fully received the answers and clarifications that I have been requesting and expect to request.” David Martin called me that same day, February 2 – obviously in response to David White telling him to deal with me. I again told David Martin that I needed to get my questions answered before I could begin preparing my Supplemental Statement. David Martin again told me that he wanted to get my questions answered. When I hadn’t heard from Jing again, I emailed David White again on 2/6/2022 with similar requests as I had said in my 2/2/2022 email, and I left a voicemail for him on 2/7/2022. David White replied with an email on 2/8/2022, inviting me for a meeting with him and David Martin and to work with his assistant to schedule the hearing. David White’s assistant told me that the earliest a meeting could be scheduled was for 2/17/2022. Obviously, my purpose in accepting an invitation to such a meeting was to obtain a postponement and to set an agenda for getting my questions and requests for clarifications and confirmations answered, for which I had been requesting for more than 13 months (at that point) and for which I had been stonewalled for the past more than nine months (at that point).
I had every reason to believe that a postponement was forthcoming. David Martin had assured me on 10/5/2021 on the phone that I had a right to have my questions answered.
I had a legal opinion from an attorney who works in this area of the law and who has close ties with the City that I had a right to have my questions answered. All of my emails to Jing and to Gina at least since October had been copied to David White and to David Martin. Every time that I reached out to David White (and John Jalili before him) complaining that I wasn’t getting my questions answered, I would get a quick response Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
from Jing, each time providing some response to my questions and requests for confirmations and clarifications, but inadequate, vague, opaque, unspecific, and off the point of my questions. I had every reason to believe that a postponement was forthcoming.
When David White on 2/8/2022 invited me to meet with him and David Martin, he led me to believe that he would postpone the hearing when we were to meet on 2/17/2022, but he ultimately refused. If he wasn’t going to postpone the hearing, he should have told me when he invited me to the meeting or at least in the ensuing nine days that he would not postpone the hearing. David White also sandbagged me regarding the 2/22/2022 hearing.
No one ever gave me, as had been promised many months before, a deadline for me to submit my Supplemental Statement. The Staff Report was completed at most only a day or two after I met with David White and David Martin when I finally learned that the City was definitely intending to go forth with the hearing on 2/22/2022, many weeks after informing the Applicant that that date had been set for the hearing. I was thus also denied the ability to provide my Supplemental Statement to the City in time for Staff to incorporate my Supplemental Statement into the Staff Report, despite Staff’s prior commitments to me.
After the 2/22/2022 hearing was continued, I pressed on. After the hearing was continued, David Martin agreed to update the Staff Report but then later reneged and the City has continued to refuse to update its Staff Report despite my numerous pleas for such update of the Staff Report based on my Supplemental Appeal Statement. But David Martin, the Director of Planning, did agree to another phone call with him and Jing to resolve remaining questions, which occurred on 3/22/2022. While not all of my very important questions were resolved, certain crucial questions were resolved. Those were questions that Jing had stonewalled me on and refused to answer, despite my dozens of attempts during the past year to get answered. Jing earlier had even asserted that such questions were not relevant. Jing had also several times since July 2021 provided direct “answers” to such questions by saying that she had examined the plans and determined that the plans comply with the Zoning Ordinance. Such response was, of course, not at all answers to my questions.
Finally, after an exhausting year of being stonewalled, during my 3/22/2022 call with David Martin and with Jing, I had enough of my questions answered so that I was thus able to explain how the Applicant’s plans failed to satisfy the Zoning Code. Essentially, Jing then admitted to me during that call that, indeed, the Applicant’s plans violated the Zoning Code. This was after more than a year of effort and ten months of being stonewalled. Essentially, after the Planning Department had failed to properly and adequately review the Applicant’s plans and apply the law to such plans, all the while stonewalling me and interfering with me and with my attempts to bring some justice to the process, which led to my performing the Planning Departments work and obligations. (This pattern of the Planning Department failing to adequately review the Applicant’s Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
plans and failing to properly apply the law to such plans had been occurring for more than two years. There were other clear and material failings by the Planning Department regarding applying the Zoning Code to the Applicant’s plans that I began showing them since prior to the original Planning Commission hearing date during and prior to May 2020.)
But the City was not done being unfair to me.
The City allowed the Applicant to substantially alter its plans very shortly before the hearing date scheduled for 4/12/2022, causing me to be unprepared to adequately review, analyze, and address all of the changes in the updated plans and also have time to sufficiently prepare and provide my Supplemental Appeal Statement and adequately prepare for the 4/12/2022 hearing date, despite my numerous requests to postpone the hearing or to hold the Applicant to its original plans. Staff is and has been clearly unfairly biased in favor of the Applicant and against me (and my neighbors).
On Friday afternoon of 4/1/2022 I became aware of the Plans with significant modifications. Most of the remaining portion of that day was lost with my scrambling to negotiate with David Martin, David White, and Staff to negotiate for more time and information. Prior to that date my deadline was Monday 4/4/2022 to submit this document but regarding 80 to 90% of that weekend I had prior commitments (scheduled more than a year ago) for which I could not cancel, beginning that Friday evening.
Only after the Applicant substantially altered its plans at the last minute on 4/1/2022 did Staff agree to update its Staff Report, but it ultimately only updated to deal with the Applicant’s last minute change in the Plans.
The City has not just incidentally provided an unfair process for me, but has orchestrated the process in an unfair manner. (See additional facts and discussion, in Third Appeal Statement of Steven Salsberg, Appellant – Substantive Issues, relating to my responses to Attachment E, #8A – D.)
Due to the above very unfair circumstances, I have had to focus on this statement and organizing and submitting documents for the hearing at the last minute to protect the record and I have thus not had time to notify and remind most of my neighbors who would be interested in attending the hearing. Therefore, it is likely that the turn out in favor of this appeal and against the proposed project will be substantially diminished, as compared to if I had been treated fairly by the City. And, most or all of the Applicant’s supporters are either students (and parents of students) or employees or consultants who the Applicant has paid to attend the hearing and who do not even live in the neighborhood or in Santa Monica.
Some of the few neighbors who I did speak to in passing who live within the notice radius have told me that they did not receive notice cards relating to this appeal.
Furthermore, this project impacts neighbors beyond the notice radius due to noise, traffic congestion, and particularly parking. The Applicant impacts on-street parking for a distance of multiple blocks because the Applicant has only approximately 34 parking Appeal 20ENT-0275 of 19ENT-0250 and 20ENT-0066 438 San Vicente Blvd.
THIRD APPEAL STATEMENT OF STEVEN SALSBERG, APPELLANT –
PROCEDURAL ISSUES May 9, 2022
spaces for a faculty of 80 and the parents of 280 children, many of whom park their cars to drop off and/or pick up their children, and for numerous large events.
The Staff Report, the City Council STOA, and the City Council Report are all confusing because they make references to exhibits and other documents that are not posted with these reports and on the Agenda and which are not readily available on the Agenda page.
And, these reports make ambiguous references to different sets of exhibits using the same referenced name but are referring to different exhibits. As such, the item is defective and it is confusing. Staff also failed to post crucial pages of Plans that were sent to me but were not disclosed to the public at large.
Staff members violated the City’s ordinances and its policies and procedures, including violating the City of Santa Monica Code of Ethics.
For all of the above, and below, reasons the City should postpone the hearing and/or rule in favor of my appeal.
The Planning Commission Hearing Process
Amongst other things that I found to be very frustrating regarding the Planning Commission hearing process was that after the Staff, the Applicant, and the public presented and spoke, the Planning Commission then addressed some issues and concerns and began “solving problems” while simultaneously shutting out the public, particularly considering that utilizing virtual hearings in the manner that it did, the City was preventing the Planning Commissioners from even feeling the mood of the public in response to the Commissioners’ proposals. Some of these “solutions” had not yet been suggested in any public filings and the public had not had any notice that such “solutions” would be introduced. Planning Commissioners proposed but mostly imposed “solutions” some of which would cause more problems than they would solve. (See, for example, my discussion (Third Appeal Statement of Steven Salsberg, Appellant – Substantive Issues)) regarding landscape screening in my fourth bullet point, in the section named The City Council Report.)1
For one, I don’t think it was proper for the
Planning Commission to have proposed and voted on alternative “solutions” to concerns in a manner that had not been first vetted by the public and that the public was not permitted to provide any input whatsoever. I ask that the City Council not act with expedience on issues that might seem minor but that are very crucial in the lives of Santa Monica residents.
1 References to the Staff Report, relate to the Staff Report, as published for the 2/22/2022 City Council hearing.